61964J0010

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1 . OFFICIALS - GRADING - TABLE OF DEFINITION OF DUTIES - TERMS NOT CORRESPONDING TO CLEARLY DISTINCT CONCEPTS - DISCRETION OF THE ADMINISTRATION - EXERCISE OF THAT DISCRETION OPEN TO CRITICISM IN A PARTICULAR CASE - MEASURE WHICH CANNOT BE ANNULLED

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 5 )

2 . OFFICIALS - GRADING - NO RIGHT TO A PARTICULAR POST BASED ON AN INTERNAL PROPOSAL FOR THE IMPROVEMENT OF THE SERVICE

1 . WHERE THE TERMS OF A TABLE OF DEFINITIONS OF DUTIES DO NOT CORRESPOND TO CLEARLY DISTINCT CONCEPTS, THEIR APPLICATION IS TO A CERTAIN EXTENT WITHIN THE DISCRETION OF THE ADMINISTRATION . THE FACT THAT THE APPLICATION OF SUCH TERMS MAY BE OPEN TO CRITICISM IN A PARTICULAR CASE IS NOT OF ITSELF SUFFICIENT TO MAKE THE MEASURE LIABLE TO BE ANNULLED FOR INFRINGEMENT OF ARTICLE 5 OF THE STAFF REGULATIONS AND OF MEASURES IN IMPLEMENTATION THEREOF .

2 . CF . PARA . 2, SUMMARY, JOINED CASES 109/63 AND 13/64, ( 1964 ) ECR 663 . AN INTERNAL ADMINISTRATIVE DOCUMENT, INTENDED TO CAUSE THE BUDGETARY AUTHORITY TO IMPROVE THE ORGANIZATION OF A DEPARTMENT CANNOT BY ITSELF CONSTITUTE LEGAL RECOGNITION OF THE RIGHT OF AN OFFICIAL TO A GRADING CORRESPONDING TO A PARTICULAR POST .

*/ 663J0109 /*.

IN CASE 10/64

RENE JULLIEN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, LECTURER AT THE UNIVERSITE DE BRUXELLES, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR :

1 . THE ANNULMENT OF :

- THE IMPLIED DECISION BY WHICH THE COMMISSION REJECTED THE APPLICANT'S REQUST OF 4 DECEMBER 1963 TO BE PLACED IN THE CAREER BRACKET A4/A5 AS FROM 1 JANUARY 1962;

- THE DECISION OF 12 DECEMBER 1962 APPOINTING THE APPLICANT TO AN ESTABLISHED POST, IN SO FAR AS HE WAS PLACED IN GRADE B1, STEP 4;

2 . DAMAGES IN RESPECT OF ARREARS OF SALARY, TOGETHER WITH COMPENSATION FOR NON-MATERIAL DAMAGE,

P.72

DURING THE COURSE OF THE PROCEEDINGS THE APPLICANT LIMITED THE CONCLUSIONS OF HIS APPLICATION TO THE ANNULMENT OF THE COMMISSION'S IMPLIED DECISION REJECTING HIS REQUEST FOR RECLASSIFICATION TO A RULING THAT THE COMMISSION MUST CLASSIFY HIM IN THE DUTIES OF A PRINCIPAL ADMINISTRATOR AND TO THE DEMAND FOR PAYMENT OF ARREARS OF SALARY . IN THESE CIRCUMSTANCES THE DEFENDANT NO LONGER DISPUTES THE ADMISSIBILITY OF THE APPLICATION AND THERE IS NO REASON FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

P.73

BY LETTER DATED 4 DECEMBER 1963 THE APPLICANT ASKED TO BE CLASSIFIED AS A PRINCIPAL ADMINISTRATOR IN CAREER BRACKET A4/A5, WITH RETROACTIVE EFFECT TO 1 JANUARY 1962 . THE COMMISSION TOOK AN IMPLIED DECISION REJECTING THIS REQUEST SINCE IT DID NOT REPLY TO IT WITHIN THE TIME-LIMIT LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS .

IN SUPPORT OF HIS CASE THE APPLICANT INVOKES THE COMMISSION'S DECISION OF 29 JULY 1963, ADOPTING THE TABLE OF DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST, AND IN PARTICULAR THE DEFINITION CONTAINED IN THE SAID TABLE OF THE DUTIES OF A PRINCIPAL ADMINISTRATOR, WHICH HE CONSIDERS TO BE THE ONLY DEFINITION APPLICABLE TO THE POST HELD BY HIM . THIS DECISION WAS BROUGHT TO THE NOTICE OF THE STAFF BY THE EEC COMMISSION STAFF INFORMATION BULLETIN NO 54 OF 2 OCTOBER 1963 .

THE APPLICANT ARGUES THAT HIS POST CORRESPONDS EITHER TO THAT OF A HEAD OF ONE PARTICULAR SECTOR OF ACTIVITY IN A DIVISION, OR TO THAT OF A HEAD OF A SPECIALIZED DEPARTMENT, OR TO A POST HELD BY AN OFFICIAL ENGAGED IN PLANNING DUTIES, THESE TERMS BEING TAKEN IN THE SENSE GIVEN TO THEM IN THE TABLE OF DEFINITIONS OF DUTIES MENTIONED ABOVE .

THUS, IN REFUSING TO PLACE HIM IN THE GRADE CORRESPONDING TO THE SAID POSTS, THE COMMISSION HAS INFRINGED THE FINAL SUBPARAGRAPH OF ARTICLE 5 AND ANNEX I TO THE STAFF REGULATIONS, AS WELL AS ITS DECISION OF 29 JULY 1963 .

IT HAS NOT BEEN ALLEGED, STILL LESS ESTABLISHED, THAT ALL SUBDIVISIONS COMING DIRECTLY UNDER A DIVISION ARE SECTORS OF ACTIVITY WITHIN THE MEANING OF THE SAID DEFINITION WITH THE RESULT THAT THEIR RESPECTIVE HEADS ARE TO BE CLASSIFIED IN THE CAREER BRACKET WHICH THE APPLICANT CLAIMS .

FURTHERMORE, THE TERMS ' SECTOR OF ACTIVITY ' AND ' ADMINISTRATIVE UNIT ' DO NOT CORRESPOND TO CLEARLY DISTINCT CONCEPTS AND THEREFORE THEIR APPLICATION TO THE DIFFERENT SUBDIVISIONS OF AN INSTITUTION IS TO A CERTAIN EXTENT DISCRETIONARY, AND DEPENDS ON THE GENERAL DISTRIBUTION OF ADMINISTRATIVE RESPONSIBILITIES . WHILST THE APPLICATION OF THESE CONCEPTS TO A PARTICULAR CASE MAY GIVE RISE TO CRITICISM, THIS FACT ALONE IS NOT OF ITSELF SUFFICIENT TO RENDER THE MEASURE LIABLE TO ANNULMENT FOR INFRINGEMENT OF ARTICLE 5 OF THE STAFF REGULATIONS AND MEASURES IN IMPLEMENTATION THEREOF .

ALTHOUGH IT IS TRUE THAT THE ARGUMENTS ADDUCED BY THE APPLICANT MIGHT JUSTIFY CALLING THE SUBDIVISION WHICH HE DIRECTS A PARTICULAR SECTOR OF ACTIVITY OF A DIVISION, THEY IN NO WAY EXCLUDE OTHER EVALUATIONS . FURTHERMORE, THE SUBDIVISION DIRECTED BY THE APPLICANT HAS NEVER BEEN REFERRED TO AS A ' SECTOR OF ACTIVITY ' IN AN OFFICIAL DECISION .

THE TASKS UNDERTAKEN BY THE SUBDIVISION WHICH THE APPLICANT DIRECTS, NAMELY THE ADMINISTRATIVE MANAGEMENT OF ALL THE BUILDINGS OCCUPIED BY THE DEPARTMENTS OF THE COMMISSION IN BRUSSELS DO NOT REQUIRE AS FAR AS THEIR DIRECTION IS CONCERNED SPECIALIZED KNOWLEDGE OF UNIVERSITY LEVEL AND DO NOT, THEREFORE, REQUIRE IT TO BE DESCRIBED AS A SPECIALIZED DEPARTMENT .

THE DUTIES CARRIED OUT BY THE APPLICANT DO INCLUDE SOME POWER OF DISCRETION AND INITIATIVE AND PRESUPPOSE AN UP-TO-DATE KNOWLEDGE OF THE LEGAL AND TECHNICAL PROBLEMS RELATING TO PROPERTY MANAGEMENT . HOWEVER, THE APPLICANT HAS NOT SHOWN THAT SUCH POWERS AND KNOWLEDGE ARE GREATER THAN THOSE FOUND IN A GRADE B1 POST, OR THAT THEY INEVITABLY COME UNDER THE HEADING OF PLANNING DUTIES WITHIN THE MEANING OF THE DEFINITIONS MENTIONED ABOVE .

FINALLY THE APPLICANT HAS CAUSED TO BE PRODUCED A DOCUMENT IN WHICH THE COMMISSION, IN STATING ITS REASONS FOR ITS REQUEST TO THE COUNCIL OF MINISTERS FOR BUDGET APPROPRIATIONS FOR THE 1964 FINANCIAL YEAR, SHOWED ITS INTENTION TO CONSIDER THE APPLICANT'S POST AS FALLING WITHIN CATEGORY A .

HOWEVER, AN INTERNAL ADMINISTRATIVE DOCUMENT OF THIS SORT, DIRECTED AT PERSUADING THE BUDGETARY AUTHORITY TO IMPROVE THE ORGANIZATION OF A DEPARTMENT, CANNOT AMOUNT TO A LEGALLY VALID ADMISSION THAT THE APPLICANT HAS THE RIGHT TO BE PLACED IN THE GRADE FOR WHICH HE ASKS BUT RATHER APPEARS UNSUITED TO THE PURPOSES FOR WHICH IT IS QUOTED .

THEREFORE IT IS NOT ESTABLISHED THAT THE COMMISSION HAS INFRINGED THE STAFF REGULATIONS AND ITS DECISION OF 29 JULY 1963 IN REFUSING TO RECLASSIFY THE APPLICANT IN GRADE A5 .

IT FOLLOWS THAT THE DEMAND FOR PAYMENT OF ARREARS OF SALARY CANNOT BE ALLOWED .

THUS THE APPLICATION MUST BE DISMISSED .

THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS AND MUST THEREFORE BEAR THE COSTS OF THE PRESENT PROCEEDINGS, EXCEPT THOSE WHICH THE COMMISSION HAS ITSELF INCURRED, IN ACCORDANCE WITH ARTICLE 70 OF THE RULES OF PROCEDURE .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 10/64 AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS, WITH THE EXCEPTION OF THOSE INCURRED BY THE COMMISSION .